October 31, 2010

I've been watching Cosmos, the science miniseries series that originally aired on PBS back in 1980. You can see them all for free on hulu. Some of the science is old news now, the graphics and the hairstyles and the clothing are definitely dated. But it still holds up as an enjoyable way to spend your time.

The stagings of historical events hold up and help bring to mind some idea of what the progress of science must have been like to the people of the periods when it happened. The soundtrack by Vangelis remains beautiful, even if electronic music has advanced considerably since the Eighties.

Most of all, there is the writing and narration of Carl Sagan. Sagan was a remarkably effective ambassador for science to the popular world. Cosmos stands as a brilliant paean to the joy of knowledge, learning, clear thought, and most of all the power of science. If the science is old news now, it makes no bones about that -- the science was new when the series was made but Sagan was clear that he fully expected the work of future generations to surpass what he was describing. At the end of the day, he describes science as a process, as an attitude. And it is an attitude full of awe, wonder, hope, and joy.

Thanks to a particular commenter who cannot seem to restrain his contempt for my failure to share his paranoia concerning Muslims while commenting on posts here, I have enabled comment moderation.

I do not wish to ban this commenter from the site, because from time to time he raises good points which are worthy of consideration and respect. But I don't think users should have to wade through the name-calling and insults in order to find these points. Sadly, Blogger will not allow me to do this selectively for individual users, which suggests that I ought to once again consider migrating the blog to somewhere that gives me a little more administrative flexibility, something that I have not found the time to do and which I do not relish doing.

I will approve and publish all comments of substance, regardless of the viewpoint expressed therein. Comments which, in my sole discretion and exclusive judgment, contain trolling, insults, abusive language, or invective will be edited so as to remove the inappropriate content thereof and only the substantive, constructive, or useful content will see the light of day. This also means that if your comment does not relate in some discernable way to the topic of the post, I will not allow it to be published.

I choose to not practice viewpoint discrimination in exercising my power as administrator of the blog. That does not mean, however, that this is an open forum where anyone can say whatever they like. As I've said in the FAQ, constructive, factual, and interesting disagreement is welcome -- trolling is not. I am not the government and therefore I am not bound by the First Amendment and I have not created an open forum. Just as I choose to not censor viewpoints other than my own, I also choose not to allow people to shoot insults at will.

Say what you have to say -- on the topic at hand. Mind your manners. I know that 95% or more of the Readers here don't need to be told that. If you are in that number, this is not aimed at you, and I regret the inconvenience.

October 29, 2010

Today's Fish Wrapper has a piece today on Oklahoma's Measure 755, about which I wrote a few days ago. One of the things that I found important to note was the fact that the sponsors of the measure could not point to a single instance in which an Oklahoma court had actually applied Sharia law. The Fish Wrapper picked up that ball and ran with it:

Backers of the amendment have cited only three cases that they contend show the threat of Sharia law. In each case, though, the courts gave no special dispensation for Sharia law. The activists say the judges erred by treating Muslims as they would other religious groups because Islamic law does not give women the same rights as men.
In the first case, a Maryland court upheld a custody order from a Pakistani court that was decided under Islamic law. Judges in the U.S. are required by federal law to uphold foreign custody orders if they comply with American legal values, but Rodgers argued that no Islamic court could ever meet this criteria.
In the second case, a Texas court allowed a couple to mediate a property dispute with a private arbitrator. That arbitration was conducted under Islamic law.
It is not unheard of to have religious law dictate private arbitrations in the United States — some observant Jews arbitrate disputes in a rabbinical court — but Rodgers contended that Muslims should be treated differently because their legal system is inherently flawed.
In the third case, a New Jersey judge ruled that a Muslim man could not be guilty of raping his wife because, due to his religion, he believed that a woman is required to have sex with her husband. An appellate court swiftly overturned the ruling, noting that it conflicted with long-established 1st Amendment jurisprudence that holds that religion does not excuse criminal conduct. The appellate court noted that the same rationale was used, erroneously, to justify polygamous Mormon marriages in the 19th century.

I've found one of those cases. It's called Qaddura v. Qaddura and it's a family law dispute from Texas. Rola and Jamal Qaddura got married in 1993. They had a religious ceremony first, in which an "Islamic Marriage Certificate" was signed and it included a dowry of $40,000 cash, payment of which was deferred, and a 1/2 interest in Jamal's house. An official marriage certificate was issued by the state of Texas a week later.

Six years after the marriage, Rola filed for divorce. She claimed the "Islamic Marriage Certificate" had the legal effect of a prenuptial agreement and should be enforced by the court to the effect that $40,000 and half of the house should be paid to her before the marital estate was liquidated and divided in half. Jamal said that the "Islamic Marriage Certificate" was induced by fraud and therefore was void.

The divorce court said in effect, "Dowries are contrary to public policy in modern-day Texas, and therefore we're going to treat this document as a nullity. Liquidate the entire estate and divide it in half equally." Meanwhile, primary custody of the kids was awarded to Rola. So each side got one big issue in their favor and one big issue against them. Rola's response to this was to file an appeal on the dowry issue, and then to sue Jamal and his brother for hiding assets. Jamal then sued Rola and her parents for endangering the children, which would have brought the custody issue back in play.

At this point, the case doesn't look all that different than any other nasty divorce that you read about in appellate case law -- this is Rich People Behaving Badly.

At some point, someone decided that the nastiness had gone on long enough and the dispute needed to come to a full and final end. An appeal to religion was made and Rola, Jamal, Jamal's brother, and Rola's parents all signed an "Islamic Arbitration Agreement," in which they agreed to submit the global dispute to the "Texas Islamic Court," which appointed three imams from three local mosques to resolve the dispute, and instructed the "Texas Islamic Court" to apply Sharia law to their decision-making process. The imams then said that they were going to re-examine the order of custody in favor of Rola and also going to re-examine the applicability of the dowry agreement -- so Rola had custody of the kids at risk again, and Jamal was at risk of having to pay more money to Rola again.

No one is happy with this, so they went back to the Texas courts with a dispute about the scope of the "Islamic Arbitration Agreement," which found its way to the Court of Appeal. The appellate court said, in essence, "This is your dispute, you can do what you want with it. You picked the arbitrators, who are these three imams. You picked the forum, which is this 'Texas Islamic Court' thingy. You picked the law that the arbitrators would apply, which is Sharia. You defined the scope of what these arbitrators would decide, which was everything. What we do is enforce contracts. You made a contract to give the whole dispute to the imams, so we're going to rubber-stamp whatever decision they make, even ones that reverse prior decisions by the trial court, unless you can show us a really good reason why we shouldn't, and you haven't done that yet. Go, now, arbitrate your divorce, and live with the result of your own decisions."

Which seems like exactly the right result to me. Unless a compelling governmental interest is subverted by what happens in the Sharia arbitration -- say, Rola is assumed to be a liar or not allowed to testify because she's female, thus violating the Equal Protections Clause -- the arbitration agreement should be enforced like any other contract.

The New Jersey criminal case looks like the trial judge made a mistake (probably as to interpreting the intent element of the crime of rape) but the appellate court's ruling seems right to me. All's well that ends well here, that's why we have appellate courts, and the law is clearer now. Note that the final and binding decision was made without regard for Sharia.

The Maryland custody case I haven't found. It seems as if the dispute about the case, if not necessarily within it, is about whether a Pakistani court can possibly comply with American legal values. I've found some differences in Sharia law to American legal principles:

In Sharia, there is no separation of church and state. The government, individuals, religious institutions, and corporations are all equally subordinate to the will of Allah. This is a significant contrast with the First Amendment and the concepts found therein.

Procedurally, the distinction between civil and criminal law is blurrier as compared to English common-law systems. Criminal prosecutions are initiated by the victims, not by the government. The victims have a voice in determining the punishment of a convicted criminal, but they are reminded by the court that the Koran requires Muslims to show mercy, temperance, and justice in so doing. In our system, of course, criminal prosecutions are the exclusive province of the state; any input from victims is ultimately advisory in nature.

Individuals are held responsible for their own actions but not those of others. American legal concepts like agency, inducement, detrimental reliance, and respondeat superior are therefore substantially diminished in Sharia.

The remedies for a particular case are not delimited by the law before judgment is rendered. A Sharia judge has great discretion to craft a remedy in a particular case in such a manner as to encourage the future behavior of all the parties, and of society in general, to act in harmony with the will of Allah; balancing that, when need be, against the idea of proportional justice ("the punishment should fit the crime"). Contrast that with limitations on the scope of civil contract and tort remedies, particularly punitive damages, and the limitations on availability of equitable relief found in U.S. and Commonwealth courts -- and with determinate sentencing, "three strikes" laws, and structured parole eligibility for criminal cases.

There seems to be no right to a jury trial, or even a concept of a jury. This is not as important as it may seem at first blush, because in an arbitration setting in a U.S. court, one must by definition waive one's right to a jury trial.

Social and family arrangements are to be treated with great caution because the presumption is a family is the way it is according to the will of Allah; therefore, a court should alter that structure only when there is a powerful and compelling reason to do so. This is different than the "best interests of the children" concept which is the overriding policy goal of most American family law.

With this last issue, I can see an argument going either way with regards to a U.S. court extending full faith and credit to a custody decision of a Pakistani court. If the Pakistani court relied on the status quoante presumptions within Sharia, and ignored the interests of the children, then the U.S. court may need to re-examine that issue independently.

I haven't found any particular Sharianic statement to the effect that women cannot be witnesses or cannot initiate legal action, that they are presumed to be untruthful, or that they are in any formal sense of the word inferior to men when appearing before a Sharia court. To the contrary, the idea that everyone is equally subordinate to the will of Allah seems to suggest that a woman is equal to a man in Allah's eyes and therefore should be treated as a man's equal before a Sharia court. If that winds up being true in practice or not is a different question.

So yes, there are some significant differences between Sharia and U.S. law. But again, there is little here that seems so awful it can't be tolerated in a private arbitration agreement. And as a practical matter, the only way a U.S. court is going to deal with Sharia is by way of looking for substantial due process violations when it is asked to compel arbitration or confirm an arbitration award, or when it is asked to confirm and enforce a previous award of a foreign court pursuant to a treaty obligation or the Full Faith and Credit clause.

I do so enjoy the Reason Foundation's videos -- they put things in perspective. Like this historical take on what has seemed like a remarkably dismal* election cycle:

* Not "dismal" for Tuesday's anticipated results, which I view as a mixed blessing overall. I say it's "dismal" because of the low quality of the candidates, the absence of meaningful policy discussion, and the sleaze and content-free emotionalism.

October 28, 2010

A breaking political "sex scandal" on Gawker.com is an article written by an anonymous (or barely-so) man who claims to have had what he calls a "one-night stand" with Christine O'Donnell is not one that I would credit. The fact that the scandal is being released right now, the weekend before the election, makes it almost indisputable that it is politically-motivated, to no end that I can ascertain given that O'Donnell is polling so badly and her campaign appears to be destined to go down in flames. Also note that the man in question was apparently paid cash money for his story -- something in the "four figures." Ooh. Aah.

Because my analysis crosses the line into the vulgar at one point, the rest of my take on the story comes after the jump. Suffice to say, if you want to skip my analysis, the story has two major holes that I found with only one read-through and minimal investigation, I don't believe it and neither should you. If you live in Delaware nothing in this story should affect the way you plan to vote for Senate -- if you liked O'Donnell before, you should still vote for her; if you liked Coons before, you should still vote for him. After the jump, then, the details about why I don't believe this crap for a second.

I put up with some hostile comments here, if the commenter has something substantive to say within even a generally abusive message. Content-free invective is subject to censorship by me through the deletion of comments, and if repeated, bannination from the site. I try to tell those with hot tempers when they are approaching the line in comments, and that generally seems to work; I've not banned anyone and I haven't deleted a comment (other than true spam) for at least eighteen months now.

So just in time to cheer me up after trolling on my cross-post, Radley Balko found another way. He fed his troll. He fed his troll notes. Whether you agree with Balko's politics or not, this evisceration of a troll is nine out of the ten kinds of awesome. (He misses only on Awesome #7, "Sexually Arousing.")

October 25, 2010

Once upon a time, illegal immigrants getting welfare were used as whipping boys to drive voters to the polls. Then it was gays trying to get married and atheists not wanting to say the Pledge of Allegiance. Next, it's about to be... Muslims! Specifically, Muslims with the temerity to use the courts. The preview is to be found in the great state of Oklahoma, where voters will shortly be presented with Measure 755, asking Oklahomans the following:

This measure amends the State Constitution. It changes a section that deals with the courts of this state. It would amend Article 7, Section 1. It makes courts rely on federal and state law when deciding cases. It forbids courts from considering or using international law. It forbids courts from considering or using Sharia Law. International law is also known as the law of nations. It deals with the conduct of international organizations and independent nations, such as countries, states and tribes. It deals with their relationship with each other. It also deals with some of their relationships with persons.

The law of nations is formed by the general assent of civilized nations. Sources of international law also include international agreements, as well as treaties.

Sharia Law is Islamic law. It is based on two principal sources, the Koran and the teaching of Mohammed.

Shall the proposal be approved?

Now, I suppose the first question that may come to your mind is, "Wow! Is this really happening in, of all places, Oklahoma?"If you check the Pew Forum on Religion & Public Life's recent U.S. Religious Landscape Survey, you'll find the most recent, statistically reliable data about the religious composition and behavior of people in the United States. There, we find that the religious makeup of Oklahoma is as follows:

Evangelical Protestants

53%

Mainline Protestants

16%

Historically Black Protestants

3%

Catholic

12%

Mormon

Less than .5%

Jehovah's Witness

Less than .5%

Other Christian

Less than .5%

Jewish

Less than .5%

Muslim

Less than .5%

Buddhist

1%

Hindu

Less than .5%

Other World Religions

Less than .5%

Other Faiths

1%

Unaffiliated

12%

Don't Know/Refused to Answer

1%

(For the record, Oklahoma has the highest percentage of self-identified Evangelical Christians of any state in the nation.)

So, it would seem unlikely that there is a lot of demand on Oklahoma courts to address Muslim issues, what with Muslims constituting such a small percentage of the population there (about 15,000 total). And, in fact,"the amendment's sponsors and strongest supporters cannot statutorily cite a case in which Oklahoma courts have applied Sharia law in any ruling."

I'm not exactly sure what Marc Ambinder means in the previously-linked article by the phrase "statutorily cite a case." Authors of legislation rarely cite to case law in statutes, except when they wish to legislatively reverse specific cases (e.g., the Civil Rights Act of 1991, statutorily reversing Wards Cove Packing Co. v. Atonio (1989) 490 U.S. 642, thus giving lie to the idea that once the Supreme Court has spoken on a subject, the Constitution must be amended to reverse its effect). I presume, though, that Ambinder means that while these legislators don't like the idea of Oklahoma courts applying Sharia law, they can't find any examples of that actually happening.

But note that the issue is one of using Sharia law to interpret the Constitution and laws: "[Measure 755] makes courts rely on federal and state law when deciding cases. It forbids courts from considering or using international law. It forbids courts from considering or using Sharia Law." Let's unpack that:

Measure 755 makes courts rely on federal and state law when deciding cases. Do you mean to suggest they aren't already doing that now? Of course they are.

So what this would really do in practice is prevent courts from enforcing private contracts in which the parties mutually agreed upon the use of Sharia laws -- restricting the right of free people to contract as they choose. What's more, it would not restrict the right of people to use other kinds of religious texts as the basis for their contracts that include arbitration clauses; one would be free to agree to "Christian arbitration" or "Talmudic law" as the choice-of-law in a private contract. That, of course, is somewhat problematic under existing Equal Protections jurisprudence.

Now, back to the second point. Measure 755 would forbid courts from considering or using international law. International law is defined in Measure 755 as "international agreements, as well as treaties." Which means that an Oklahoma state court would have to disregard international agreements and treaties if those were invoked in a particular dispute. Like, say, NAFTA. Or extradition agreements. Now, in theory, if a party to a case invokes a treaty, that may invoke Federal removal jurisdiction, but that isn't always the case. So you could be left with a state court required to disregard a treaty ratified by the Senate, and thus break an international commitment of the entire nation.

The authors of Measure 755 should read Article VI of the United States Constitution. Doing so would remind them that they are obligated as state legisators to uphold the United States Constitution and treaties made thereunder -- something which they are in fact attempting to subvert with this law.

And then there's the question of why, exactly, they are so afraid of Sharia law anyway. Sharia are practical legal principles derived from the Koran (the holy book purportedly written by Mohammed) and the Hadith (a collection of sayings attributed to Mohammed by oral tradition). Many of the teachings and commands of Sharia look a lot like the teachings and commands of, say, the Christian Bible. Worship is compulsory. Marriage is encouraged, children are encouraged within marriage, sex outside marriage is forbidden. Murder, theft, and dishonesty are generally forbidden. That's not to say that everything in Sharia is above criticism. It's to say that if you look into it a little bit, there is not much that is so awful it can't be tolerated in a private arbitration agreement. If there are prohibitions against women being treated equally as witnesses or litigants, that subverts an important Constitutional policy, but the few cases I've looked at have generally broken in favor of the women litigants so it can't be any worse than any of the more familiar religious choice-of-law clauses that ought to be enforced in courts for the very good reason that the parties to the agreement chose them.

Nor is anyone credible actually calling for Sharia law to supplant the Constitution as the supreme law of the United States. I don't include the Osama bin Ladens of the world; bin Laden is not credible sitting in a cave in Afghanistan mere feet away from a dialysis machine powered by a car battery, on the glide-path to obscurity and burial in a dusty, anonymous grave. When a Congressional candidate from a major party says that he will propose an amendment to the Constitution to guide courts to rely upon Sharia, I'll worry about this. Until then, this is a bogeyman.

But none of that is important. The facts don't matter and they are, indeed, inconvenient. The point is to make people scared of the toothless shibboleth that is Sharia law and thus drive them to the polls to vote for meaningless-at-best and Constitution-subverting-at-worst wedge issues like Measure 755. Don't fall for it -- keep it in perspective, folks.

October 23, 2010

On this day, 6,013 years ago, Jehovah said the famous words "let there be light," and the universe was created. October 23, 4004 BC (remember, there is no year zero) was the big date.

If you're a young-earth creationist, that is. And if you also think Archbishop James Ussher didn't make any math mistakes in his literal interpretation of Biblical history in his Annales veteris testamenti, a prima mundi origine deducti. And you can trust Archbishop Ussher -- he was an Anglican Biblical literalist, after all; technically a Protestant but still intellectually acceptable to Catholics.

If you take the Bible as the literal truth, today is fine day for celebration! Hat tip to PZ Myers, as if he needs any more.

October 22, 2010

Citizens Against Government Waste has put this advertisement out on the eve of the mid-term elections. It is called "Chinese Professor."

I am uncomfortable with the advertisement for a few reasons, and I like the ad for a few other reasons.

It is uncomfortable first because it plays on fear. I don't think it's specifically a reincarnation of the Yellow Plague fears of a century ago, but there is an echo of it. Rather, it's a fear that the Chinese are malicious simply because they are our new economic and military rivals. The advertisement's fear of being overtaken and even in some sense of the word mastered by the Chinese is not particularly racial -- rather, the ad simply assumes that the Chinese are as smart and as opportunistic as we are, and that they would not hesitate to use our own mistakes and misfortunes to their advantage. That's not thinking of them as racially evil or even particularly evil at all; it's just thinking of them as motivated and capable competitors.

It's a fear that the Chinese are consciously attempting to step in to the shoes of the United States, which is not something that I think is accurate. China is trying to do its own thing -- which does involve being rich and powerful, yes, but I've yet to see evidence that it involves trying to be a projector of its military power. China faces inherent geographical problems with the projection of its military power, particularly westward overland.

The Chinese do not own all of our debt. They own roughly one-twentieth of it. They're also not particularly happy about it because they don't think the acquisition of U.S. government debt is a good idea because they would prefer to have more Euro-debt than Dollar-debt, and would prefer debt more readily convertible to Renminbi, or gold, even more than that.

Three-quarters of the debt of the United States is owned by U.S. citizens and U.S.-based corporations and banks. If our economy and government catastrophically break under the weight of our debt and we default, the primary bearers of the harm done by that default will be ourselves.

The ad portrays an ultra-modern, ultra-clean, and technologically-advanced lecture hall in a Chinese university. There is no guarantee that the Chinese will not one day surpass us in technology, although I suspect that with globalization the level of technology will be much more uniformly spread than this -- if a Chinese university's lecture hall looks like that in 2030, it's a good bet that lecture halls will also look more or less like that in pretty much every industrialized nation, including the US.

The Chinese have economic and technological problems of their own, and urban-rural and age-driven cultural divides of their own, which will surely come in to play in the next twenty years over there. The professor in the advertisement looks to be pretty young -- in his early forties, perhaps. I don't think the Old Guard in China is ready to let go so easily, I don't think it would be comfortable with the free flow of information that a lecture hall laced with sophisticated computers and wireless internet would represent, and a young, good-looking, and charismatic professor like this would be viewed as a figure to watch closely by a sure-to-be still-authoritarian government, no matter how closely he held to the nationalistic line.

And if the United States economy collapsed utterly, the Chinese would suffer for it. We are, after all, their biggest customer.

All of which is not to say that CAGW is wrong. It is to say that the advertisement presents an unrealistic nightmare future as a scare tactic. Like all nightmare fictions, it is unlikely to come literally true, but rather should be viewed as a graphic and compelling symbol of what could come true. We are spending ourselves into impotency. While I think that the idea that we would all wind up working for the Chinese is a stretch, the idea that we could wind up enslaved to a huge public debt socialization is not.

If you are conservative, what you should fear about this is that recipients of governmental aid -- social security, welfare, medical care entitlements -- will wind up receiving the bulk of governmental redistributions and leave little for national defense, infrastructure, or law and order, reducing the government to the kleptocratic nightmare scenario of Directive 10-289.

If you are liberal, what you should fear about this is that the bulk of the debt will not be held by the government of the PRC, but rather that it will be held by large American or semi-American corporations and banks, who will then leverage the power over the government brought by that debt into increased receipt of governmental largesse and overt delegation of governmental power, the gradual institution of corporate feudalism in place of functional democracy.

I hope we can all find some common ground here. Sadly, fighting the descent of the nation into one or the other (or both, for that matter) of these nightmare scenarios means spending less money we don't have on stuff we can't afford. It means demanding that our government live within its means and not burden future generations with the finance charges on our present-day spending.

October 21, 2010

NPR should not have fired Juan Williams for his expression of a rather commonly-held sentiment, especially when his remarks are heard in their proper context. There was no First Amendment violation, but Williams was treated unfairly and whether you agree with him or not, the dude got screwed and NPR looks really bad for what it did.

One of the things that is most aggravating to me in court is when the judicial officer presiding over a hearing relinquishes control of proceedings to one of the parties – and when that party then uses that latitude from the bench to go off on rants about irrelevant matters which will not materially affect the outcome of the issues to be resolved. For a famous example of this, consider how the defense attorneys abused Judge Lance Ito like he was an inexperienced substitute teacher in the O.J. Simpson murder trial.

Plaintiffs who oppose the mosque want a temporary restraining order to block construction on the site. They claim county officials violated state law by failing to provide adequate notice of the meeting where the site plan was approved.But many of Brandon's questions had nothing to do with procedural issues, and he repeatedly drew objections from lawyers for the county.
"Do you want to know about a direct connection between the Islamic Center and Sharia law, a.k.a. terrorism?" Brandon asked Farley.

[¶]

At one point during questioning, Brandon began asking whether Farley supported hanging up a whip in his house as a warning to his wife and then beating her with it.
Farley protested that he would never beat his wife.
County attorney Jim Cope objected to the question, saying, "This is a circus."

I’d have to agree with Cope. The defense argument here is that Rutherford County did not issue permits for the construction of the Islamic Center of Murfreesboro with proper notice to the public of the meeting in which those permits were issued. The same argument would apply to the construction of any building. What will or will not go on in that building, whether that be worship of a supernatural entity (whether real or imagined is particularly irrelevant), the consumption of alcohol, the exhibition of educational motion pictures, or topless dancing, really doesn’t have anything to do with whether the county went through the proper notice procedures before issuing permits.

I'm not sure what remedy Brandon could be asking for -- to retract the permits and make the Islamic Center re-apply for them? That might delay construction for a few weeks, but would hardly prevent the mosque from being built at the end of the day. This business with the whips and equating Sharia with terrorism has no ascertainable relationship with whether public notices were promulgated in the correct manner and at the correct time. A motion to exclude evidence (sometimes called a motion in limine) would be in order here.

But for some reason, Chancellor Robert Corlew is not restraining Mr. Brandon, despite acknowledging in response to an objection by the County’s attorney that “Brandon had not established any proof, in four days of testimony dragging over three weeks, that local Muslims were in any way a threat,” and he allowed the plaintiff’s lawyer to continue with that line of questioning even after that point was made. So Mr. Brandon went on to claim that a Muslim man in the area “has an Arabic phrase over his front door that the attorney referred to as ‘the battle cry for jihad.’” It turns out to be the phrase “Allahu Akbar,” which means “God is Great,” and to effectively slander the County Mayor with claims of financial impropriety on the flimsiest of accusations and no apparent evidence to substantiate them.

I say “for some reason,” but in fact I strongly suspect I know what that reason is. Chancellor Corlew has already made up his mind that he is going to rule against the plaintiffs and in favor of Rutherford County. That will allow the mosque to get built. By not restraining the plaintiff’s lawyer, and overruling any objections to questions made by him, Chancellor Corlew is starving the plaintiffs of any issues to raise on appeal. Although it ought to be abundantly clear by this point that the absence of evidence, logic, or even good taste is not going to restrain either Mr. Brandon or (apparently) his clients.

It’s unfortunate, though, that presumptively good people looking to engage in a lawful religious activity, about which there is no evidence whatsoever that they are harmful, malicious, or in any way not assets to their community, as well as the public officials who made functionally ministerial decisions to allow these American citizens to go forward with their lawful plans, should have to be raked over the coals like this. It gives the legal profession a bad name. It makes Murfreesboro, Tennessee look like an enclave of bigots because people will remember the antics of Mr. Brandon rather than the more tolerant and appropriate conduct of the governmental officials and residents of the area being raked over the coals.

(Murfreesboro, Tennessee is, in fact, a perfectly charming and pleasant southern town, which has become an exurb of Nashville and is home to a rather large public university and a site of great historical significance. Back during my time in Tennessee, professional endeavors took me to Murfreesboro on a few occasions, and I never found anything objectionable about any of the people I met there, or any of the lawyers or judges I saw or spoke with while in the city. Indeed, one Murfreesboro lawyer went out of his way to give me advice and guidance for establishing myself as an attorney after I had recently moved there. I have pretty much only good things to say about Murfreesboro based on my admittedly limited experiences there.)

If you think, as I do, that by engaging in these antics Joe Brandon has cast the legal profession and the State of Tennessee into otherwise-undeserved disrepute, maybe you ought to share that opinion with him. His toll-free telephone number is (866) 662-3884. By all means be firm and direct, but also please bear in mind that you should express yourself peacefully and politely.

In preparing applications for 501(c)(3) status for various entities, I have often come across the statement that there is no definition for a “church” in the Internal Revenue Code; the examiners who determine whether a particular applicant for tax-exempt status is really a “church” or not just kind of eyeball it. Since “churches” receive favorable tax treatment, it would seem discriminatory of the government to make that favorable treatment available to groups of people who possess a favored belief about matters of religion (viz., “theists”) but to deny that same treatment to people who possess a disfavored belief (viz., “atheists”).

Now, I know that certain atheist groups are organized as “churches” for purposes of the Internal Revenue Service, but this has always seemed faintly ridiculous to me. Atheism, after all, is not a religion but rather the absence of religion – it’s been a common quip among non-believers for a while that atheism is a religion like bald is a hair color.

But still there are many who insist that no, atheism is a religion – one, because atheists invoke the religion clauses of the Constitution to assert their rights; two, because atheists do make propositions and claims (albeit sometimes more modest sorts of claims than their detractors would have the public believe) about the supernatural; and three (most bizarrely), because they think that not believing is somehow a more strenuous exercise of faith than believing.

And to be sure, a significant number of people who have only recently realized or publicly disclosed their atheism act a lot like the way recent converts to a more traditional sort of religion do – they “evangelize” and try to convince others to adopt their view of the world, they broadcast their thoughts on the issue repeatedly and unprompted, they exhibit scorn towards their former belief system and those who still adhere to it. One might call such people “angry atheists.” I prefer to be a “friendly atheist,” and I try not to give in to the occasional impulse to “anger.”

(1) Ultimate ideas: fundamental questions about life, purpose, and death;
(2) Metaphysical beliefs: beliefs addressing a reality which transcends the physical and immediately apparent world;
(3) Moral or ethical system: proscription of a particular manner of acting or a way of life that is moral or ethical;
(4) Comprehensiveness of beliefs: an overarching array of beliefs that coalesce to provide the believer with answers to many of the problems and concerns that confront humans;
(5) Accoutrements of religion: the presence of various external signs of religion, including
(a) a founder, prophet or teacher,
(b) important writings,
(c) gathering places,
(d) keepers of knowledge,
(e) ceremonies and rituals,
(f) structure or organization,
(g) holidays,
(h) diet or fasting,
(i) appearance and clothing) and
(j) propogation.

United States v. Myers (10th Cir. 1996) 95 F.3d 1475, 1484. Alternatively, I also learn that the Third and Ninth Circuits define religion differently, looking at only three factors: (1) whether the belief system “addresses fundamental and ultimate questions having to do with deep and imponderable matters;” (2) whether the system “is comprehensive in nature;” and (3) whether it is recognizable “by the presence of certain formal and external signs.” Alvarado v. San Jose (9th Cir. 1996) 94 F.3d 1223, 1229; Malnak v. Yogi (3d Cir. 1979) 592 F.2d 197 (Adam, J., concurring).

Well, now that the Courts have spoken, we can finally answer the question of whether or not atheism is a religion! This, in turn, will help me answer the question of whether a group of atheists organized into some kind of formal community, can be a “church.” Let’s use the more elaborate Tenth Circuit test first:

(1) Ultimate ideas: Yes, atheism purports to answer fundamental questions about life, purpose, and death. It posits that there is no evidence for a supernatural creator of life, no evidence that life has an objective purpose, and that the best evidence available is that death is a final, irrevocable, and permanent loss of existence as a conscious, self-aware entity. While atheism properly understood does not posit these positions as certain truths, it’s probably fair to say that most atheists consider these propositions to be very likely to be true.

(2) Metaphysical belief: Yes, atheism addresses a reality which transcends the physical and immediately apparent world, by saying that there is no evidence for any such reality. Again, properly understood most strains of atheism would not flatly deny that such a reality exists, but would rather say that it is extremely unlikely to exist.

(3) Moral or ethical system: Nope. While atheists are at least as moral and ethical as theists, taken as populations and understanding that within both populations there are aberrations and outliers, there is no moral or ethical code which logically flows or is incorporated in a world view that is deeply skeptical about the supernatural.

(4) Comprehensiveness of beliefs: I don’t see it. Just as with a moral code, disbelief in the supernatural – at least, on its own – does not lead one to reach “answers to many of the problems and concerns that confront humans.” An atheist may be free to look to other ethical or moral or economic or philosophical systems for such answers, and indeed may be free to find such systems without regard to doctrines, teachings, or traditions to which their theistic counterparts might feel obliged to adhere, but atheism on its own does not offer such answers.

(5) Accoutrements of religion: Not a lot of these:

a. Founder, prophet or teacher? None that I know of. Maybe Socrates?

b. Important writings? I suppose a lot of people have read The God Delusion by Richard Dawkins recently, but you don’t have to have read or agree with Dawkins to be an atheist and there were lots of atheists before Dawkins wrote that (or any other) book. Moreovery, Myers says (93 F.3d at 1483) of important writings of a religion that they are “seminal, elemental, fundamental, or sacred writings. These writings often include creeds, tenets, precepts, commandments, prayers, scriptures, catechisms, chants, rites, or mantras.” That doesn’t sound much like The God Delusion to me.

c. Gathering places? I wish. One of our biggest problems with our local freethought group is finding a regular place to meet. That was also something of a problem back in Tennessee, where the group had to change venue when a local civic building was taken away and looking at their website now, it seems they are having to use more private homes as venues than a facility at the local community college.

d. Keepers of knowledge? The Myers case indicates that this means “clergy, ministers, priests, reverends, monks, shamans, teachers, or sages. By virtue of their enlightenment, experience, education, or training, these people are keepers and purveyors of religious knowledge.” Meyers, 95 F. 3d at 1483. If there are such people for atheists, no one has ever sent me the memo.

e. Ceremonies and rituals? What would this be – sleeping in on Sunday? I know there are some atheist groups that have a silly “reverse baptism” ritual in which a newly-announced atheist is treated with a blow-dryer. But no, there is no standardized or even commonly-accepted ritual for becoming or being an atheist.

f. Structure or organization? If you think atheists have structure or organization, you’ve obviously never tried to organize or impose structure on a group of atheists. “Herding cats” is a metaphor that comes to mind. Feeding them helps.

g. Holidays? Not so much. No atheist has ever gone to his boss and said, “I want off work tomorrow to celebrate Darwin’s birthday.” At least, no atheist who wanted to keep his job ever has.

h. Diet or fasting? No way! Why would we do that?

i. Appearance and clothing? I’ll concede that some atheists have a tendency to wear T-shirts with amusing slogans. But aside from that, no.

j. Propogation? “Most religious groups, thinking that they have something worthwhile or essential to offer non-believers, attempt to propagate their views and persuade others of their correctness. This is sometimes called ‘mission work,’ ‘witnessing,’ ‘converting,’ or proselytizing.” Meyers, 95 F.3d at 1484. While no one makes them do it and some of us find it tiresome when they do, there are some atheists who do try to “de-convert” their friends who are faithful and who explain why they find atheism to be a superior world view to theism. So I guess that yes, we have this accoutrement.

But overall, I don’t think atheism meets the Myers test. Atheism lacks a moral or ethical system, a comprehensiveness of belief, customary gathering places, formalized keepers of knowledge, ceremony and ritual, structure and organization, holidays, diet and fasting, and distinctive appearance and clothing.
What about the Ninth Circuit’s simpler three-part test in Alvarado? As it turns out, while it's phrased differently, Alvarado is a simplified form of the Myers test, with one very interesting omission:

(1) Does atheism “address [] fundamental and ultimate questions having to do with deep and imponderable matters”? Yes. See points (1) and (2) above under my Myers analysis.

(2) Is the atheistic system of belief “comprehensive in nature”? No. See point (4) in the Myers analysis.

(3) Is atheism recognizable “by the presence of certain formal and external signs”? No. Some atheists like to wear “scarlet A” T-shirts, but most do not. For the most part, we look and dress and act just like the rest of you! In fact, there might be an atheist sitting right next to you right now and you’d never know it! More to the point, atheism lacks most of the “accoutrements of religion” described in point (5) in the Myers analysis above.

So there you have it – in at least eighteen states and three territories, atheism is not a religion as that term is legally defined by controlling legal precedent.

I teased you before about the difference between the circuit tests. Here it is: in the Third and Ninth Circuits, a religion need not necessarily include a moral or ethical system. I suppose that some understanding of ancient pagan belief systems were fundamentally amoral, but even then, the pagan gods from time to time condemned or punished humans for their immoral conduct. Nevertheless, it does raise an issue of whether an ethical or moral code must be integrated into a belief system in order for that belief system to be a “religion.”

And if it's the case that you need not have a moral or ethical system in order to be religious, why should atheists be given any grief about their alleged lack of "objective" morality?

The NFL isn't supposed to be broadcasting games of grown men playing tag. NFL football is about tackling. It is a contact sport, at its root a contest of strength and power. To be sure, there is much enjoyment to be had in watching the competing strategies play out, the speed and skill of elite players, and the rhythm of high-speed offenses clashing against the manipulation of the game clock and the effects of fatigue as a game wears on. All of this makes America's favorite sporting event a unique event that can be enjoyed at many levels simultaneously; if you've no appetite for the cerebral stuff, you can at least enjoy the hard hits and the circus-stunt catches.

It is, of course, entertainment -- ultimately, it is meaningless; it matters little to the day-to-day lives of nearly everyone whether the Chicago Bears or the Green Bay Packers win the NFC North division and thereby gain an automatic bid to the playoffs. But that means that if this endeavor called professional football is going to succeed, it's supposed to be fun to watch. It was bad enough when the NFL began fining and penalizing players for "orchestrated touchdown celebrations." Those goofy touchdown dances are fun. Come to think of it, it's fun (in a different way) to get mad at the players on other teams for partying against your guys. The fun stuff is what draws fans into the stands, what draws them to tune in on TV and make the advertisers willing to pay premium prices to hawk their products during time-outs and breaks in the action, and therefore that's what makes NFL football so profitable.

Instead, it's wimping out and threatening to penalize -- including fining and suspending -- players who hit each other hard and risk injuring their opponent. There is an inherent risk of injury in this sport, and all sports. People agree to do it anyway -- they compete and dedicate their entire lives to giving themselves even an opportunity to do it, because there is a tremendous audience for it -- and it's fun. I don't mean to suggest that the NFL should go back to the days of leather helmets, no pads, and adopt an eye-gouging rule. There should be reasonable ways to protect players from unnecessary and avoidable kinds of harm. I like that the players wear well-designed helmets, armor, and that there are particular kinds of maneuvers and stunts that are not permitted. It's a fine line to draw as to what kinds of methods of forcing your opponent to the ground should be permitted and what should not be. The guys who run the show need to do what is reasonable and appropriate to prevent injuries -- but they also need to bear in mind that we're talking about tackle football. There are going to be injuries and I thought everyone knew that.

Now, this year, the injuries seem to be taking a particularly hard toll on my beloved Green Bay Packers. Fans from Sheboygan are coming to the game suited up, just in case they're needed in an emergency. But this Packers fan is sanguine about that, because dealing with injuries is part of the game, too. The luck of the draw is that Green Bay has to deal with that problem this year and the organization, as a whole, has to adapt to losing their top running back, their top tight end, a good safety, and a strong offensive lineman, within the course of just over a month of play. It sucks, but you have to deal. (Therein lies a life lesson, by the way.)

Part of the frustration is that I enjoy consuming this entertainment product, and the manufacturer of the product insists on continually taking out the very things in the product that I enjoy the most. Part of it is the frustration of watching a very successful business self-destruct because it just plain doesn't think things through. Football is about tackling, so you have to give the players enough latitude in the rules to actually tackle each other. That's what they came to the stadium to do, that's what the fans paid money at the stadium gate to see, that's the product the NFL is in the business of selling, as surely as Hershey's is in the business of selling sweetened chocolate.

Not letting football players tackle is kind of like banning curve balls in baseball because batters sometimes get hit when pitchers throw curves. This "don't hit the other guys too hard" rule is bound to be the New Coke of Professional Sports.

UPDATE 10/24: This was apparently tweeted out of the Minnesota Vikings' Saturday practice:

October 20, 2010

The Ninth Circuit Court of Appeals has long been a bête noire of social conservatives. And a look at recent history certainly illustrates why that should be the case. Those whacko, out-of-control, liberal activist judges on the Ninth Circuit just plain have to get reined in before they utterly destroy American democracy and all that is decent.

Stephen Reinhardt is still Stephen Reinhardt, and Alex Kozinski still defies easy classification, but it's time to call it like it is: as to the issues that matter most to people concerned about Constitutional, social, or cultural issues, the Ninth Circuit has become a generally favorable forum for socially conservative points of view.

October 19, 2010

I anticipate some flak coming my way on this point after Tea Partiers read below that I criticized Christine O'Donnell. So here is a brief refresher for those among you who see grave Constitutional peril in a particular semantic. The First Amendment does not contain the words "separation of church and state." So too will you search in vain in the Constitution for the word "federalism," but there is no doubt in anyone's mind that federalism is what the Tenth Amendment is all about.

There is no guarantee in the Constitution for your right to cross-examine witnesses against you. The closest you get to that is the Sixth Amendment which provides that you have the right "to be confronted with the witnesses against" you. That means you have the right to be in the same room as them when they testify against you. The right to "assistance of Counsel" in the Sixth Amendment does not mean that your attorney can cross-examine the witness, either. But no sane person would contest the claim that the concept of "due process" in the Fifth and Fourteenth Amendments includes the idea of cross-examination.

What this means is that textual literalism is inadequate to understand the Constitution. Is "separation of church and state" a concept in the Constitution? You can argue "yes" or "no," but it's not a dead-bang winner either way simply because those exact words are not there. You've got to look deeper than that, no matter which conclusion you want to reach.

What we know for sure is in there is a prohibition against an establishment of religion,* and a prohibition against governmental interference with the free exercise of religion. I have a hard time understanding the logic of someone who would dispute the idea that the government must be neutral in regards to religion; it must neither favor nor condemn any particular religion as opposed to another; it may neither favor nor condemn religion generally over non-religion. Instead, individuals must be free to believe (or not) as they wish on an individualized basis. This is called "non-endorsement." Non-endorsement and separation of church and state are functionally the same thing; it's just that one phrase has become politicized and the other has not. But the concept is what we're trying to look at, not the semantics.

It remains beyond me how religious people can realistically claim that the government prohibits their right to engage in free exercise in this day and age. This claim usually seems to point to things like state recognition of homosexual couples (whether in the form of civil unions, domestic partnerships, or marriages); complaints about requirements that parochial schools teach biology (what is to say, they object to the teaching of evolution); sex education; and education about and official pleas for tolerance of minority religions, ethnic groups, and sexual preferences.

I do not understand, and have never understood, how any of that interferes with someone's decision to not engage in or believe in any particular religious teaching. "The school said I have to be nice to the gay kids!" Well, yes, you do. Even if your religion says that the gay kids are inherently morally wrong, you still have to be nice to them -- because beating them up for being gay is still beating them up, and you aren't allowed to beat up anyone for any reason. That's called "assault and battery" and prohibiting assault and battery is not a restriction on the free exercise of religion. (There are some anti-bullying measures out there right now which raise my eyebrows -- not because they interfere with the free exercise of religion, but rather because they potentially interfere with free speech. But this isn't the place for me to get in to that issue and I haven't thought it through all the way anyhow.)

The real question that gripes about "separation of church and state" are aimed at can be phrased in an equally valid fashion: how do we appropriately define an "Establishment" of religion? For instance, is teaching creationism in a public school an Establishment of religion? You might argue "no," but I think that's a steep uphill fight -- a public school teacher saying "It is acceptable to believe that God created the universe and God created human beings" is inherently a governmental endorsement of a particular religious belief by the government.

The teaching of evolution as part of biology, however, does not represent a governmental endorsement of atheism or secularism in contrast to religious beliefs. It represents governmental endorsement of science. Plenty of scientists who believe in God also believe in evolution. There is no inconsistency between religious belief and scientific acceptance of the overwhelming evidence of historical macroevolution of biological species.

Yes, "intelligent design" is creationism -- if you want intelligent design taught in public schools, you want to lead public school children down the path to concluding that the "intelligent designer" was Jehovah. Please don't insult my intelligence by offering the fiction that you posit with any degree of sobriety that life on Earth might have been originated by time travelers or long-dead alien genetic engineers.

Another argument that teaching evolution interferes with free exercise is pointing to statistics that Christian children who study evolution leave Christianity in larger numbers than those who do not. If that is really the case, bear in mind that it's not the government saying that Christianity is false, it's the government saying science is important to learn. As mentioned above, there are hundreds of thousands, if not millions, of people who study and teach evolution and nevertheless maintain their religious faiths.

And yes, it is for the United States Supreme Court to have the final say on that question -- someone has to have the final say, and even if you object in theory to the idea that the Supreme Court can "make" law, you would surely agree with Robert Bork and other originalists that the Supreme Court can legitimately interpret the law, that their job is to apply the law to a particular set of facts in the cases that come before them, and that in so doing they set precedent to be studied, considered, and absent a powerful reason not to, followed in future cases.

A moment's thought about what it is that courts actually do reveals that the difference at that point between interpreting, applying, and setting precedent and "making law" is a good deal blurrier than it might have seemed to be at first glance. Precedent is law, because it binds future inferior courts to follow it, and the creation of precedent is inherently part of the "judicial power" which is explicitly granted to the courts in Article III.

So it is quite in harmony with the Constitutional scheme of separation and division of powers for the courts to respond to challenges in appropriate cases by pronouncing when something is or is not an Establishment of religion. When it is, those things should be stricken down by the courts and the exercise of judicial power is not a usurpation of democracy but rather a guarantee of our individual and collective liberties. Those who find the rulings distasteful should nevertheless bow to the orders and reasoning of the courts, because to do otherwise is to invite lawlessness and we are, ultimately, a nation under the rule of law.

To say that there is no such thing as separation of church and state because that phrase does not appear in the Constitution is remarkably shallow thought. Which is why a room full of law students laughed at the suggestion that separation of church and state is not found in the Constitution.

* I suppose you could argue that there is only a prohibition against a Congressional Establishment; if that is your position, would you be comfortable with the idea of a Presidential Establishment of religion? Where in Article II is the President given authority to Establish a national religion?

When I was a kid, I turned up my nose at Brussels sprouts as thoroughly as if my mother had asked me to eat poached dog snot. But the other day, I saw a bag of Brussels sprouts at the store and thought to myself, "Self, those could be good." And they were good. I can't wait to have more Brussels sprouts. If you never thought you'd like Brussels sprouts, try this:

Peel the garlic and crush the cloves under the flat of a large knife. Heat the butter and olive oil together above a medium high flame, stirring until the mixture is foamy. Reduce the flame and add the crushed garlic. Stir occasionally while you peel the outer layer out of any blemished sprouts, and then slice the sprouts in half lengthwise. Remove the now-toasted garlic (otherwise it will get bitter) and add seasonings to the foamy fat mixture. Lay the halved sprouts, cut-side down, in the fat, and cover the saute pan for about fifteen minutes. Serve fresh out of the pan, when the sprouts are firm, tender, and browned.

Next I'm going to try them steamed with dill weed and served up with a light lemon sauce.

A thunderstorm just blew through our area. It dumped a ton of hail out in our yard; it's far too warm and wet for the hail to last very long but it was loud and filled with lightning and thunder, all very impressive. Our dogs, unfortunately, are terrified and are likely to refuse to go outside without human accompaniment for several days. They've been needy and we've allowed them access to our bedroom once the cats are put away in their room; being around the people seems to help them calm down.

During the storm, it occurred to me that thunderstorms must have played a part in the birth of religion. Even to a modern, scientifically literate sophisticate such as myself the storm is a little bit scary -- and I know full well what's going on up there in the sky and why the world is behaving the way it is. A lightning strike can kill a human being, can light a house on fire in an instant. Hailstones can get large enough to draw blood when they strike. For someone with little ability to understand air currents, atmospheric pressure, static electricity, sonic booms, and how hail is formed, the sudden violent insanity of the weather must have been terrifying, confusing, and awe-inspiring.

There are clearly very, very powerful forces at work, and it's hard to avoid describing a thunderstorm without using words alluding to anger and rage. Nature herself is angry. If nature can be angry, then she must be something like a person, to have emotions. Maybe, then, someone can do something to calm her down, make her less angry and less scary. That would seem to be a terribly important thing to do during the chaos, violence, and destruction that a thunderstorm can generate. And it would account for a lot of ancient visions of the gods as temperamental, capricious, destructive, cruel, and judgmental.

Now that we understand what causes thunderstorms, of course, we have no need for myths about thunder-gods. But that doesn't make the thunder any less impressive when you're in the middle of it.

If you only listened to the news, or only read headlines on the Intertubes, you'd have to conclude that there are just plain not enough adults running for office this year. Let's review exhibits A through E on that subject:

You know, politics hasn't been this entertaining since free beer and cider was passed out at rallies back in the Gilded Age. But where yesteryear's "free beer" rallies were the way serious politicians got elected, today fundamentally unserious politicians are now getting elected by promising free beer. Or at least, lower rent. People from other parts of the world have to be looking in to American politics this year and wondering what in the hell is going on over here. Come to think of it, you don't have to be from abroad to be wondering exactly the same thing.

October 16, 2010

The Wife and I took a trip to a nearby town to, among other things,do some shopping. In every store we visited, they played Gipsy Kings over the stores' music systems. Now I think I know how to play the guitar in Spanish.

So despite having urged repeal of DADT, the Obama Administration, through its Justice Department, has been fighting the legal challenge to DADT in the courts. I don't have a particular grievance with that; the executive branch of government has a duty to defend a colorably constitutional law. But there is a limit beyond which that duty has been fulfilled, and that duty is, in my opinion, discharged when it becomes apparent that the statute in question truly does violate the Constitution. Executive officers swear an oath to uphold and defend the Constitution of the United States. Having fought to preserve the law and obtained a ruling that despite the government's best arguments to the contrary, a law does contradict the Constitution, at that point the executive can lay down its burden and say, "We defended the statute but it's more important to defend the Constitution."

This principle has implications for the Prop. 8 case now pending before the Ninth Circuit, by the way. Regular Readers here will recall that I have been critical of Governor Schwarzenegger and Attorney General Brown for not offering a spirited defense of Prop. 8 in the case of Perry v. Schwarzenegger. An adversarial system requires that adversaries engage one another, and since they chose not to do this, the resulting opinion has that much more reason to be suspect in the eyes of those who already find its result distasteful. Comments made even here on this humble blog demonstrate that very well; people who really, really don't like a result in a case will work very hard to find fault with the process used to reach it, particularly when the merits of the result are difficult to refute -- which is one of the reasons why process is important. Usually, the responsibility for process rests mainly with the judge, but the advocates bear some burdens, too.

But as to DADT, there can be no doubt that the Obama Administration did offer a full-throated defense of the policy. Which is all well and good. Now that it has lost in court, the Administration is at the point that it has real discretion about what to do next. It can decide that the judge's opinion is well-reasoned and decline to appeal. This would seem to be consistent, at least on a political level, with the Administration's prior call for DADT to be repealed by Congress.

In fact, Obama is actually taking a legally tenable position here: DADT is Constitutional, therefore I have to defend it; at the same time, I think it's a bad law, so it should be repealed. That is actually an intellectually principled and appropriate way to handle the situation. But it's awful, awful politics. It also ignores a third facet of the issue: as President, he exercises a substantial amount of discretion in how the laws are to be executed. All Presidents do; it's part of the inherent authority of being the executive. The President has the power to, the necessity to, and is expected to, prioritize in discharging his duty to faithfully execute the laws.

He could say, "I think our biggest law enforcement problems within the military are 1) suicide prevention, 2) domestic violence, and 3) misappropriation and theft of war materiel. We don't seem to have any significant problem with violations of Don't Ask, Don't Tell, so I'm instructing the Secretary of Defense to issue policies to the various JAG Corps to devote their prosecutorial resources to the problem areas and to bypass prosecution of non-problem areas because violation of DADT doesn't appear to be a particularly big problem right now." He could even say, "I think DADT is bad policy and unfair, so I'm instructing the military to not initiate any discharge proceedings for violations of DADT in cases where they do not have tangible and compelling evidence that the violation of DADT has had a significant impact on unit morale and efficiency." He would need no authorization from Congress or anyone else to issue such orders, but has not chosen to do so.

The reason is, he doesn't have to. It's not like significant numbers of gays are going to vote for Republicans any time soon, after all. A cadre of Republicans have gone to considerable effort to ensure that not only will gays never vote for them, but also to serve up those voters to the Democrats on a silver platter; all the Demos have to do is call the Republicans a few names, drop a few scare tactics, and boom! those votes are locked up. If they aren't the most enthusiastic Democratic voters in the coalition, well, Obama can live with that. In the meantime, Obama has precious little political capital, so expending it on issues that improve the rights and lives of people who are already going to support him anyway (albeit in a lukewarm fashion) doesn't make sense -- especially if he believes that doing so will alienate a bloc of voters whose support really is up for grabs. Here, I speak of probably older, probably blue-collar voters; many of whom grew up in a world where it was literally illegal to engage in gay sex acts and they thought those laws were just fine. It's in a bid for their support that Obama doesn't actually lift a finger to help out gay people and therefore only makes nice noises about gay rights when it is politically required that he do so.

While he has found an intellectually tenable reason to thread the needle in this way, I wouldn't accuse the President of being "principled" on this issue. "Craven" seems like a better adjective.

Fortunately, the Pentagon has less of a problem with Judge Phillips' order than the White House does. It has suspended enforcement of DADT for all branches pending the resolution of the Log Cabin Republicans case, in compliance with the court order. Once again, our military is conducts itself with professionalism, honor, and obedience to civilian political and legal authorities; it deserves praise for so doing and the rest of us should recognize in that act one of the deepest and most profound foundations of our collective freedom.

We can also point to Judge Phillips as representative of the other other significant bulwark of our freedom. She responded to the case before her with an unflinching and well-reasoned application of the law. She couldn't help but know that she would probably come under significant personal attack for her ruling and no doubt some of the same people who suddenly became whizzes at legal procedure after the Perry v. Schwarzenegger opinion are busy coming up with talking points about why Log Cabin Republicans also suffers from fatal procedural flaws. So far, though, about all I've heard or read are the usual cries of "Liberal judicial activism! Liberal judicial activism! Oh noes our democracy is in peril!" which are substantively nothing more than whining.

We should celebrate that a judge has made this order. The reasoning is fair, principled, logical, and consistent with the law. It vindicates the rights of Americans who amply deserve it. It makes our military stronger because it lets the military retain people whose service is vital. The order bypasses what was turning into a messy and contra-majoritarian political struggle. But most of all, it represents the triumph of the rule of law over arbitrary and callous political calculations by an unprincipled, craven President.

First, the video makes the point that humanities and liberal arts classes really are good -- when well-taught -- at getting students to develop the sorts of skills like critical thinking, autonomous and creative problem-solving, and written communications which are truly important in most professional environments I come across (and which are sadly lacking in so many fields of life).

But for some reason, a having degree in Neoclassical French Literature seems like it would be a death knell for a resume intended to land a non-academic job. It blows right by this point, as if it were obvious that were you to hire that French Literature major, you'd be happy with him but society is somehow prejudiced against the arts and humanities. The video blows right by why that prejudice might exist.

My suggestion to answer that unanswered question is the old Vietnamese proverb: a fish rots from the head down. While in theory, the intensive study of Neoclassical French Literature could teach critical thinking, develop good writing abilities, and inspire autonomous and creative problem solving, in practice it does not do these things, because French Literature, like a lot of humanities classes, are taught by teaching assistants and/or professors who themselves lack critical thinking, problem solving, and written communications skills themselves. There is a perception that to succeed in a liberal arts program, a student need only parrot back the professor's own opinion to her, can use academic gobbledegook and fuzzy reasoning in the place of rigorously-examined language and logical skills, and has been the beneficiary of grade inflation to the point that any quantifiable academic evaluation of the student's performance is meaningless.

In other words, the assumption out there in the marketplace is that humanities professors are useless, otherwise-unemployable twits who do nothing but smoke a lot of weed and train otherwise-intelligent young people in how to also become useless, unemployable, weed-smoking twits.

The reality may well be different, but that's the perception. But is the perception really that far off the mark? Less so than most professional academics would be comfortable admitting, I'll wager, at least in a forum where they could be identified by their colleagues. Teaching critical thinking is hard, in part because it requires at minimum that one think critically oneself. Teaching good writing skills is difficult, in part because it requires having good writing skills oneself and in part because it is time-consuming and not focused on the substantive subject professors believe they have been hired to teach.

Second, the video makes a clever pun concerning the arts and the use of pharmaceutical aids to combat attention deficit and hyperactivity disorder (ADHD). Experiencing the arts is a consuming, focused, mentally stimulating task -- one that is aesthetic. By contrast, the use of drugs to control ADHD is an anesthetic technique, one which deadens a person's susceptibility to stimulation, which diminishes one's ability to feel and respond to the outside world. That's a nice pun.

And the third issue is the point made about ADHD diagnoses being regionally clustered. I couldn't believe this was true when I fist saw it. It didn't take much time to track down where that graphic element of the video came from. Using this data from the Centers for Disease Control and Prevention, a map can be created which demonstrates that as a general trend, the further to the U.S. southeast one gets the more likely an elementary or high school student is to be diagnosed with ADHD. That map was originally drafted by an artist at the Associated Press and it looks like the picture to the right.

A closer look at the map and the underlying numbers, however, shows that there is some lying with statistics going on here. You'll notice that the difference in color between the various states is dramatic -- it's easy to see a difference between Illinois, Indiana, and Kentucky, for instance. But compare lowest-tier Illinois with highest-tier Kentucky, right next door. Illinois has a diagnosis rate of 7% or lower. Kentucky has a diagnosis rate of more than 10%. That's potentially a difference of as little as 3.1%. But by picking the gradations between tiers the way it did, the AP turns the raw CDC data into a dramatic geographic trend; you might ask after looking at the chart, "Is there something bad in the water of the Southern states?" No, there isn't. The color choices and tier gradation choices only gives that impression.

The CDC data points to about half of the ADHD-diagnosed kids overall being treated with drugs like Ritalin. The few kids on Ritalin I've seen in my limited experience at high schools over the past couple of years bear a passing resemblance to zombies from the movies -- they are quiet and sit still, which surely makes a teacher's job easier, but they are also not particularly mentally engaged with much of anything. It's hard to imagine that their grades have gone up because of the drug; what may be happening is that the kid's disciplinary problems go away but his mental baseline is lowered in the process.

For that reason alone, my remarks here should not be understood as a dismissal of the claim that ADHD is over-diagnosed and that making a practice of treating teenagers with powerful psycho-pharmaceuticals is a particularly good idea. I like that the author of the video, among other people, are raising this flag because it seems to me that another way to diagnose ADHD is to call it "adolescence." Teenagers don't sit still, they never have. Teenagers don't pay attention to their teachers, they never have. This is nothing new, and it's something that can be addressed in quite a lot of different non-pharmacological ways.

But I'm not convinced at all that there is a dramatic regional difference between the states in diagnosing this condition. While over-diagnosis and mistreatment of ADHD strikes me as something likely to be a real problem within primary and secondary education, this data, at least, does not support that conclusion.

Fourth, the author makes the point that a lot of learning occurs in groups rather than in book study, homework, testing, or individualized instruction. This may be true, but my experiences with both online and live teaching in format which required me to have students work in groups for the purpose of working in groups can only be described as uniform failures. "Learning Groups" are very useful and educational for demonstrating the economic concept known as the "free rider problem," but not much else. What I observed happening in damn near every "Learning Group" I ever monitored was one student doing all of the work and the rest doing damn near nothing, with the result that they all got the same grade. This is unfair, and just as important, it results in only the one student actually learning anything while the rest of the students just coast. So consciously setting up team learning exercises is probably a bad way to go, but perhaps there are ways to integrate group learning activities that are less ham-handed and are not readily susceptible to free riders.

Industrial-style standardization probably is a bad way to go. But the video goes too far in suggesting that standardized testing is counter-productive. There has to be some sort of way to quantify and evaluate student progress and thus teacher performance. Perhaps the current regime is not doing a good job of that, but at the same time a standardized test does measure something.

But perhaps the biggest ideas that I felt good about after seeing the video was the possibility that the humanities could be rescued from their current status as a backwater area for ambitious graduates seeking employment if critical thinking and written language skills can be re-injected into humanities curricula. This will require that instructors acquire and demonstrate those skills themselves, and it also requires that they give less-than-stellar grades for students who demonstrate less-than-stellar performance in those areas regardless of the students' mastery of the substantive subject matter of the class.

This means that there must be sufficient time for an instructor to convey and evaluate those things in meaningful ways, which takes away from time that could otherwise be spent on teaching multiple classes, and it takes away time that could otherwise be spent on research and academic writing. This implicates the publish-or-perish impulse that drives faculty incentives at a lot of academic institutions, too.

The video was deeply flawed. But it nevertheless raises a lot of issues, a great many things to consider about one's own education and the way other people will be educated in the future. It inspires real thought. In that respect alone, it is a worthwhile use of the ten minutes it asks of you.

Sometimes a blog post is just perfect. It starts with a good title. It includes a properly evocative photograph. Its content is well-written and understandable, without talking down to the lowest common denominator. It is factually dense, informative, and leaves you smarter than you were before you read it. And it makes you laugh while you read it. This is such a post. Via.

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About Me

One wife, two dogs, two cats. Childless by choice.
Attorney (licensed in California and formerly in Tennessee). Aspirations to the bench.
Likes: professional football, cooking, good wine, bad science fiction movies, long walks on the beach.
Dislikes: People who struggle to accomplish tasks of ordinary difficulty, most country music, willful ignorance, magical thinking, and weak-ass barley pop beer.

Atheism FAQ

Transplanted Lawyer FAQ:

Q: Why do you write under a pseudonym? And why did you pick “Burt Likko” as that pseudonym?A: If I were writing under my real name, I might have to be more circumspect in offering provocative opinions. “Burt Likko” is an inside joke left over from an old friend of mine’s name being mangled by a careless person over the phone. If you don't get the joke, you aren't intended to. Move along, please.

Q: Where have you been transplanted from?A: I started out in California. Then I went to Tennessee. Then I came back to California.

Q: What’s the “Potted Plant” thing all about?A: The phrase “not a potted plant” comes from a famous quip made by a prominent lawyer named Brendan Sullivan while representing Oliver North, before a Congressional hearing in the late 1980's. It stuck with me.

Q: Why do you write such long posts?A: Not all my posts are long. But when I start exploring an idea, I want to do it completely.

Q: How much time do you spend writing all this stuff?A: It varies, of course. But probably less time than you think; I’m both a glib writer and a fast typist.

Q: Why do you write so many posts?A: I like it.

Q: I like to read your new stuff every day. But some days you don’t write anything at all!A: That’s not a question.

Q: Jeez, you really are a lawyer. Why don’t you write every day?A: Some days I don’t feel like it. Some days I don’t have time. Other days, I do, and on those days, I write.

Q: I don’t find the [insert subject here] posts interesting.A: So don’t read them. By the way, this is a list of “Frequently Asked Questions,” and that wasn’t a question.Q: Why didn't you write about [insert subject here]?A: There might by any of a number of reasons for that. Likely candidates include: 1) I haven't gathered enough information about [subject] to feel I have anything intelligent to say about it, 2) [subject] does not interest me at the moment, 3) I haven't found the time to write about [subject], or 4) pretty much everything that's needed to be said about [subject] can be found easily elsewhere. The internet is a big place and you should be able to easily find some discussion or coverage of [subject] if you can't find it here. I reject any moral judgments, whether explicit or implicit, concerning any failure, whether real or imagined, whole or partial, to comment on [subject]. If you think [subject] requires commentary that you do not believe is forthcoming here, well, Blogger and other similar services are 100% free and there is nothing to stop you from commenting on it yourself in your own forum.

Q: You’re not really an atheist, are you?A: I swear to God I am.

Q: Are you a member of the ACLU?A: No.

Q: Are you a member of Americans United for Separation of Church and State?A: No.

Q: Why don’t you refer to your wife by name?A: For the same reason I don’t refer to myself by name.

Q: What do you mean by “childless by choice?”A: I thought that was pretty obvious. I do not want to have or raise children.

Q: How much of this stuff about yourself is true?A: I don’t see how that matters. To the vast majority of you, I’m a pseudonymous blog author whom you will never meet or interact with. To those Readers, my personal life just isn’t all that big an issue.

Q: So why do you write about personal stuff at all?A: Because some of my friends and family do read the blog and for them, it’s a good way to stay in touch with me. If you don’t know me personally, then I would expect that my day-to-day personal affairs are uninteresting to you.

Q: Do you make money off this blog?A: Not a penny. Nor am I interested in doing so. The blog is a labor of love, not a commercial venture.

Q: Can I post on your blog?A: Maybe. We should talk (or e-mail) first, but it’s not out of the question.

Q: If I don’t want to comment but I have something to say about what you wrote, what can I do?A: Send me an e-mail. I won’t reprint our conversation without your permission and if I do reference what we’ve discussed, it will be in such a way that no one could possibly figure out who you are.

Q: Why do you delete comments?A: For the most part, I don’t. I do not delete comments for the reason that they reflect a point of view with which I disagree. But I do delete comments that 1) contain advertising or spam, 2) are overtly abusive, or 3) are apparently so unrelated to the topic of the post as to be non-sequiturs. And I reserve the right to delete any other comment for any reason that I, in my sole and complete discretion, choose to. If you believe a comment has been deleted wrongfully, I encourage you to rephrase your comment with the above in mind and try again.

Q: I hate you and think you’re an awful person because [insert reason, usually based on a political disagreement, here]. So why won’t you let me say so?A: It’s your right to disagree with me and even to hate me – but that doesn't make you special. The manner in which you express yourself is different than the viewpoint which you express. Respectful, intelligent disagreement is welcome. Trolling is not.

Q: Jesus Christ is my lord and personal savior. Can I give you my testimony?A: No.

Q: What would convince you that God was real?A: I strongly doubt that you can. Please don't try; I find such efforts tiresome.

Q: Why do you refer to God as Jehovah?A: It's the proper name of the diety most people are referring to when they talk about "God." I use the name despite the Biblical injunction against doing so because I do not believe in or fear magic spells or incantations in any form.

Q: So you were a Catholic, is that why you don’t believe in God anymore?A: What exactly does that question imply? As far as I can tell, Catholics are every bit as likely as Protestants to be morally good people. If you can understand why I would reject the Roman Catholic Church’s particular flavor of mumbo-jumbo, then it shouldn’t be that big a leap for you to understand why I disbelieve in your church’s mumbo-jumbo, too.

Q: Evolution is just another kind of religion. Believe in it if you want, but it isn’t real.A: You’re entitled to your opinion, of course. But you’re profoundly incorrect. A “religion” by definition involves the relationship of a person with at least one supernatural entity. Evolution, by its very terms, eschews reference to supernatural causal factors with respect to the question of the manner in which biological organisms speciate over time. Evolution enjoys overwhelming support in the forms of the fossil record, species diversity, and the ongoing, observable phenomenon of speciation.

Q: Speciation has never happened.A: Yes it has.

Q: Where do you get your pictures?A: Generally from Wikimedia Commons, XKCD or FARK.

Q: Why the Green Bay Packers?A: Because my family’s roots are in Wisconsin. I’ve rooted for the Packers since I was a little boy.

Q: I think you’re really a [something].A: Oh.

Q: Why do you post recipes?A: Life is lived best with good food and good wine enjoyed amongst good friends. When I cook, and it turns out well, I like to share the joy that brings. If food, cooking, and recipes do not interest you, skip the posts about them.

Q: You really hate Sarah Palin, don’t you?A: No, I don’t. I admire that she achieved high political office at a relatively young age. She has charisma above and beyond her good looks and seems to be a basically likeable and appealing person and would probably be a great dinner guest. I respect that she is protective of her family. But she’s a) too socially conservative for my taste, and b) not been able to demonstrate a thorough enough grasp of public policy issues I care about to be the kind of President I would like.

Q: Do you think this blog got you dooced out of your job in Tennessee?A: It certainly didn’t help. But I've no regrets about that.

Q: Why do you hate Tennessee so much?A: I don’t hate Tennessee at all! Tennessee had some really good things going for it. Its politicians have figured out how to provide for an adequate state government without any income tax -- California should take a lesson from them. It’s beautiful and green. Housing was affordable. We made and still have some very good friends. I think it's something of a disadvantage there to not be (or at least claim to be) a Baptist, though. And I got a great offer to return to California.

Q: If you could be any kind of a tree, what would it be, and why?A: Anything in a national park. That would minimize my chances of being turned into furniture.

Q: For someone who claims to not have a television, you sure seem to know a lot about what’s happening on TV.A: The internet is a remarkable thing.

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